Volume 19 — Mississippi Reports

<p>Claims barred by the statute of limitations at the time of the death of the' original debtor, are not revived by the subsequent promise of the executor- or administrator to pay them ; where, in the case of an executor, no more-than ordinary powers are conferred by the will, j</p> <p>Semble, the same rule prevails where the bar was not complete at the debtor’s death ; as well as, where the statute had not commenced running when the debtor died.</p> <p>Whether an executor or administrator is or is not bound to plead the statute of limitations,— Query ?</p> <p>Where a witness in his deposition speaks of a fact as within his recollection, but to fix the time of its occurrence has to refer to letters in his possession, the circumstance that in his answer he speaks of having made such reference but does not produce the letters, will not exclude the answer from being evidence.</p> <p>The period of nine months after grant of lefters, within 'which suits against executors and administrators are prohibited, must be added to the time prescribed by the general statute of limitations, in order to constitute the required period for the bar of a claim.</p> <p>The time prescribed by the statute, within which claims must be presented to executors and administrators for allowance and payment, does not begin to run until after the expiration of the sixty days required by law for the publication of notice of the grant of letters.</p> <p>The presentation of a claim to an ex'ecutor or administrator to save the bar of the statute, need not be in any particular form, provided it be sufficient to give such notice to the executor or administrator of the existence of the claim, its character and amount, as will enable him with reasonable certainty to provide for its payment.</p>

William Eekford alleges in his bill that Ewing F. Calhoun, on the 26th of August, 1839, made a deed of trust to Ovid P. Brown, as trustee of the property described in the bill, to secure a debt therein mentioned; that the trustee sold the property on the 25th July, 1840, to complainant for $2075, who extended to Calhoun the privilege of finding a better purchaser ; and in consequence, did not take a deed until the 2d of March, 1841; and that Calhoun, by himself or agents,…

James M. Smiley, vice-chancellor. In July, 1846, George Potts, a citizen of the state of New York, filed to the December term, 1846, his bill to foreclose a mortgage on land and negroes in this state, executed by William Ferriday, and Helen C. Ferriday, his wife; the parties made defendants were H. S. Eustis, J. F. Gillespie, and F. S. Hunt, assignee in bankruptcy of William Ferriday, and all citizens of Mississippi, Mrs. Helen C. Ferriday, a citizen of Louisiana, and the…

Stephen Cooke, chancellor. The Planters’ Bank of Tennessee, Matthew Watson, and Nicholas Hobson, allege in their bill that on the 14th day of May, 1842, Watson recovered a judgment against James… Held: and could only hold as agent, and not as marshal. Mickles v. Hart, 1 Denio, 548; 4 How. S. C. U. S. 1; 7 Alabama, 53; 6 Cowen, 461; 7 Ibid. 746. 4. The case in 10 Peters, 402, was an appeal from Alabama. The statute of that state differs, from ours.

In error from the decree of the superior court of chancery; Hon. Robert H. Buckner, chancellor.

In error from the superior court of chancery; Hon. Robert H. Buckner,-chancellor.

In error from the circuit court of Franklin county; Hon. Stanhope Posey, judge. Thomas A. Magee, administrator de bonis non of Philip Magee, deceased, and successor of Owen H. Magee in the administration, who the declaration alleged had rendered his final account as administrator, sued David Gregg in detinue, for a negro slave named Henry, late the property of Philip Magee. The defendant plead non detinet; a trial was had, and a verdict was rendered for the defendant.

Henry Dickinson, vice-chancellor. The bill and amended bill, filed by John C. Hicks and Sarah C. Hicks, Bernard M. Hicks, David W. Hicks, Margery Hicks, Robert W. Hicks, and Jno.

In error from the circuit court of Adam’s county; Hon. Stan-hope Posey, judge.

This was an action of covenant by William M. Ducker, as administrator of Richard W. Webber, deceased, upon a sealed writing, dated March 22, 1841, executed by Lydia Whitehead, whereby she recited', “ that she had employed Webber as her attorney at law and counsel to claim for her ten slaves, then in Franklin county jail, levied on under an attachment, returnable to the next May term of Franklin circuit court, issued against James W. B. Hutchins.” And she thereby agreed to…

Stephen Cocke, chancellor. Henry D. Gilpin alleges, that on the 29th day of April, 1836, William Smith executed a mortgage to Thomas B. J. Hadley of the property therein mentioned, which was duly recorded, for the'purpose of securing the payment, among other debts, of a bond to Hadley for ten thousand dollars, payable on the 1st day of March, 1841, and four promissory notes, of five hundred dollars each, payable on the 1st day of September, 1839, 1st day of March, 1840, and…

In error from the circuit court of Hinds county; the Hon. George Coalter, judge. On the 12th of July, 1843, Burr Garland obtained judgment against Blanton Crisler, for the sum of four hundred and eleven dollars and eighty-six cents, an execution upon which was levied on two negroes, as his property.

James M. Smiley, vice-chancellor. Samuel N. Robb, the appellant, filed his bill in the court below, charging, that on the 28th March, 1839, when a mitior, the defendants, Henry & Hoyle, doing business at Rodney, in this state, with a full knowledge of his minority, represented to him their desire to make a note for $450-50, and for form’s sake merely, they desired another name beside their own, to obtain time on an account due a house in New York, for a balance on a bill of…

In error from the circuit court of Hinds county; Hon George Coalter, judge.

In error from the circuit court of Hinds county; Hon. George Coalter, judge. Solomon Tifft instituted his action of replevin against Alexander Yerden, by which he was restored to the possession of effects attached by Yerden for rent alleged to be in arrear by Tifft to him. . Tifft declared against Yerden in the usual form.

Charles L. Dubuisson, judge. Catharine Bisland filed her petition in the probate court, stating that she was the widow of James Bisland, deceased, who died in July, 1843, leaving a certain lot within the city of Natchez, the boundary of which is given, being the same conveyed by A. T. McMurtry and wife to said Bisland, deceased, by deed, bearing date the 26th of August, 1836, of which land her husband was seized in law, during the time of his coverture with petitioner, and…

In error from the circuit court of Leake county; Hon. Morgan L. Fitch, judge. Thomas Myers, on the 9th of April, 1839, recovered a judgment in the circuit court of Leake county, against George S. Fitler and Robert E. Halford, for the sum of $152-50; an execution on which, after repeated returns of nulla bona, was on the 16th of January, 1843, levied on two negroes and a wagon as the property of Halford.

Henry Dickinson, vice-chancellor. Joseph Caruthers in his bill charges, in substance, that complainant was one A. H. Roach’s security on a note for $300 to W. H. Bayless, which was assigned to T. J. Oliver by Bayless, by Oliver to J. Dean, who obtained judgment against Roach and complainant on the 12th of March, 1842, for $306 debt, $17'93f costs; execution issued 11th of April, 1842. Complainant, on the 10th of Aug. 1842, filed his affidavit of his being a surety.

Robert C. Perry, judge. An action of assumpsit was brought by the appellees against the appellants, as drawers of a bill of exchange for $2047x9o2¡¡-made at Louisville, and payable in New Orleans.

In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.

Stephen Cocke, chancellor. Wm. C. Richards filed his petition stating, that in 1840 Hart filed his bill in chancery against the Planters’ Bank and others, enjoining the bank from having executed a deed of trust made by Harriet Wooster, on a farming estate of 1020 acres and thirty-five slaves, given to secure about $19,400.

In error from the circuit court of Claiborne county; Hon. Thomas A. Willis, presiding judge. Reuben B. Newman sued Samuel M. and Adolph Heath, and others, on a joint note for fifteen hundred dollars. The cause was submitted to the jury on the plea of general issue. The plaintiff read in evidence to the jury the note sued on, and rested his case.

An appeal from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. Thomas R. Dennis, use of Jacob Rickhow, president of the board of trustees of school lands of township eleven, range two, east, brought his action of assumpsit against Samuel M. and Adolph Heath, J. A. Dennis, and John Grissom on a joint note, dated January 25, 1839, for $1500, due January 1, 1841.

In error from the circuit court of Madison county; Hon. John H. Rollins, judge. [Judge Rollins being interested, did not preside at the trial of the cause ; the parties, in obedience to the statute, selected the Hon. Robert Hughes to sit as judge, in the case, and he presided accordingly.] Lewis M. Garrett made his motion in the Madison circuit court, at the May term, 1844, against Samuel Hamblin, sheriff of that county, and William Cooper, Hugh A. H. Lawson, Nathan B.…

In error from ■ the circuit court of Madison county; Hon. Morgan L. Fitch, judge.

In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge. John Doe, on the demise of James R. Reynolds, sued John Ingersoll in ejectment, to recover a plantation 'containing fifteen hundred and twenty acres. There were two trials in the court below. The first at the November term, A. D. 1843, when, as appears from the bill of exceptions, the following facts in substance were exhibited. Both parties traced title to Marcus Pierce, who was the former owner.

<p>In a joint action against the maker and indorser of a promissory note, to which the plea of the statute of limitations is plead, proof that the indorser made payments at different times within the six years, will not vary or affect the liability of the maker; and he will not be deprived of the benefit of the statute thereby.</p> <p>Proof of partial payments after the maturity of a note made by the indorser, is presumptive evidence of demand and notice to such indorser ; and will justify a verdict of a jury accordingly.</p>

Robert H. Buckner, chancellor. William F. Smith alleges in his bill, that, on the 27th day of January, 1838, Ezekiel Baxter, a citizen of Tennessee, recovered a judgment against William C. Beck, in the circuit court of Hinds county, for the sum of eleven hundred and forty-four dollars sixty cents damages, besides costs, execution upon which issued to Madison county on the 10th day of October, 1838, from the April term, returnable to the October term, 1838, which execution…

<p>In error from the circuit court of Kemper County; Hon. Ar~ mistead B. Dawson, judge. (Judge Dawson having been of counsel for one of the parties in the case below, by the agreement of the parties, Jacob R. Metcalfe, Esq. presided at the trial of this suit in his stead.)</p> <p>On the 2d of April, 1845, Henry Bright and Wm. J. Ledyard, under the firm of Bright & Ledyard, by Messrs. Baldwin & Bliss, their attorneys, gave notice to Thomas Davis, Jr., Michael Ross, and Lewis Stovall, that they would, on the 30th of April, 1845, move the circuit court of Kemper county to set aside and vacate the return made by William Killen, late sheriff of the county of Kemper, of “ satisfied ” on an execution issued from the clerk’s office of the court, in the name of Bright & Ledyard against them, dated December 9th, 1839, for $1143-87, and $30-37 costs, returnable to the May term, 1840, of the court; for the reasons, 1, that the money had not been paid to Killen; 2, if any thing was paid, it was not in lawful currency; and 3, because Killen received notes of the Mississippi Union Bank, then depreciated below their nominal value.</p> <p>The motion was tried at the March term, 1846, when it was proved by J. Bliss, Esq., that as attorney for Bright & Ledyard, he had obtained the judgment against Davis and Ross, under an execution upon which Stovall had subsequently executed a forthcoming bond which was forfeited. The management of the case was intrusted solely to him; and he, residing in Alabama, and having no confidence in the Mississippi Banks, and especially the Union Bank, had instructed Killen, the sheriff of Kemper, not to take Union Baulc and some other Mississippi bank notes. That at the return term of the execution on the forfeited bond in the spring of 1840, he could not find either the execution or the sheriff; and on application to Ross, one of the principal defendants, he was told that the execution had been paid in Union Bank notes; which were about twenty per cent, below par; that he (Ross) had offered them previously to one of the plaintiffs, who resided in Mobile, Ala., who refused to take them because they were depreciated, and he had paid them to the sheriff; the witness told Ross he would not recognize the payment, but would pursue it further; he had never received the money said to have been paid Killen, nor authorized any one to receive it. Killen had gone to Texas. The witness had never authorized any rule or motion against Killen for not paying this money over, nor had the plaintiffs, to his knowledge, ever authorized any one; nor had he or the plaintiffs, to his knowledge, ever authorized the reception of the Union Bank money, or sanctioned it; on the contrary, he had forbidden the sheriff to take it; the plaintiffs had refused it when offered it, and he had declined regarding it as a payment.</p> <p>Ephraim Smith also proved, that Ross had told him that he had paid the execution in Union Bank notes. The execution was read, and had this return on it: “Satisfied in full, March 16, 1840, William Killen, sheriff.”-</p> <p>The defendants then read the record of the proceedings in a motion against Killen as sheriff, and his sureties on his bond, made at the October term, 1S40, of the Kemper circuit court, by Bright & Ledyard, for not paying, upon demand previously made, the money collected on the execution referred to. The motion was in the ordinary form, and signed “ Joseph G. Baldwin, plaintiff’s Attorney.” The record showed that notice was duly served on the defendants, and on the 30th of October, 1840, a judgment obtained against them for the sum of $>1236-54, with twenty-five per cent, damages, and eight per cent, interest from the time of the demand, which the judgment recited was proved to have been made on the 21st day of October, 1840. The record also showed that an execution issued on this judgment in favor of the plaintiffs to the October term, 1841, which was returned “no property found,” as to all the defendants.</p> <p>Joseph G. Baldwin, on the part of the plaintiffs, then proved, that he, without any authority from the plaintiffs, and without their knowledge, or that of their attorney of record, (Bliss) had entered the motion referred to against the sheriff and his sureties, and had prosecuted it to judgment, as shown by the record. He was at the time the motion was entered, the partner in the practice of the law, of Bliss, and both resided in Alabama; he, however, attended to the Mississippi business; but with the old business of Bliss, (and this case against Davis, Ross, and Sto-vall, was part of Bliss’s old business,) he had no concern, and was not employed or expected to attend to it. Bliss had asked him to look after his old Mississippi business when he was attending the courts in this state, but had never given him any special directions with reference to it, nor had he any interest or part in it. Having himself at the October term, 1840, various motions to make against Killen for money collected in cases of his own, as attorney; and seeing this one of Bliss’s in the same condition, and knowing nothing whatever of the nature of the payment, or of the facts connected with it; and understanding that Killen was lurking in the neighborhood, having before that absconded, and that he could probably make a demand upon him for the money, and get service of a notice upon him; he out of friendship and regard for Bliss, and kindness to him, and supposed care for his interest, without authority or knowledge of Bliss or plaintiffs, entered the motion, and obtained the judgment against the sheriff and his sureties as stated. Nothing had been made out of the sheriff or his sureties. The witness and Bliss had now been jointly authorized by the plaintiffs to enter the present motion.</p> <p>The court decided on this state of fact, that the motion must be overruled; and the plaintiffs below sued out this writ of error.</p> <p>1. That the taking of the money (so called) was without authority, and the return, based upon such taking, no satisfaction. 5 How. 246; lb. 621; 3 S. & M. 271; 7' How. 453; are decisive of this point.</p> <p>2. It cannot be contended, that the mere fact of the taking of one remedy, rightful or wrongful, destroys the right to another. There are frequently various remedies, and on diver parties, for the recovery of a right, none of which are lost by a resort, without satisfaction, to others. The going on bail bond, and pursuing original debtor, is an example. 8 Johns. 364. Also, suing sheriff for not making money, and running another execrn tion against defendant, &c. 7 Johns. 499; 5 How. (Miss.) R. 624.</p> <p>3. If the court should hold that the remedies are inconsistent, and that the taking of one such, under any circumstances, is an election, then, we contend, it could only be such in this case, viz., that the ruling of the sheriff was done as an election, and with full knowledge on the part of the plaintiffs of the remedies wherefrom the election was to be made. “Election,” says Dyer, (Dyer, 281 a,) “is the free and spontaneous separation of one thing from another, without compulsion, consisting in the mind and will.”</p> <p>Mr. Baldwiu cited also, and commented on, Dash v. Van Kleeck, 7 Johns. 477; McElroy v. Mancius, 13'Johns. 121, to show that the rule and judgment against the sheriff and sureties do not conclude plaintiffs in this motion, unless it be shown that they knew, at the time of taking the rule, that they had a remedy upon the defendants; that is, that the sheriff had taken payment in depreciated paper. Let us inquire how that fact is.</p> <p>4. The general rule is admitted to be, that notice to the agent, or attorney, is notice to the principal. Bat that rule does not embrace this case. Because,</p> <p>1st. In the first place, “ the agent must come to the knowledge of the fact while he is concerned for the principal, and in the course of the very transaction which becomes the subject of the suit.” 13 Yes. 120, and authorities cited in note. Now, although the fact stated by Ross might have been evidence of, or in some “ transaction,” yet it cannot be contended' that the admission itself was any “ transaction ” the subject of a suit, or was made “in the course of any transaction the subject of a suit.”</p> <p>2d. But constructive notice does not hold as between the parties to the transaction. “ It is only where the equitable rights of third persons are concerned, that notice of facts, communicated to an agent or attorney, is held to be notice to the principal,” Champlin v. Laytin, 6 Paige, 189, 203.</p> <p>3d. In the third place, the attorney is only “ the special agent for his client, to ask for him in court not to make private or executory contracts.” 2 Call, 498 ; 1 Bibb, 89. Nor to receive communications. At any rate, it cannot be pretended that Bliss was the agent of plaintiffs to hear Ross talk. It would be absurd to hold, that an attorney at law is expected or bound to listen to whatever he may hear the adverse party, or any person else says about his case; and, whether he believes it or not, for his client to be held bound by it.</p> <p>4th. Bliss’s powers, according to some of the authorities, ceased with the obtaining of judgment and return of satisfaction. 1 Dev. 467; 1 Hill, 184; 8 Johns. 361; 2 Bibb, 382; 2 J. J. Marsh. 184. So that he was not attorney, if this be law, at the time of this communication.</p> <p>5. But suppose they did know it: the question then is, as to the effect of the judgment taken in their names. There is some conflict of authorities upon the question, whether the unauthorized acts of an attorney, or rather the acts of an unauthorized attorney, bind the party for whom he appears. 1 Term R. 62; 6 Johns. 318; 6 Pick. 483; 3 Ham. 411, 518; 6 Litt. 186; 4 lb. 334; 4 Mon. 377; 3 J. J. Marsh. 532, are, that they do not.</p> <p>But whatever may be the weight of authority upon that subject, it is clear that an attorney has no power, although regularly employed, to release a debt without satisfaction, to enter a re-traxit, nor, as in our state, to receive any thing, or authorize the sheriff to receive any thing but gold and silver in payment of a debt. 10 Johns. 221; 3 J. J. Marsh. 532.</p> <p>If this be so, it is difficult to see how an attorney could make an election for another, whereby he could release a debt without satisfaction, and give effect, thus indirectly, to the taking of depreciated money; and that, too, without knowing he was making it. If he could not authorize the sheriff to receive depreciated paper, can he, by merely entering a rule against the sheriff, release the defendants in execution, and in effect ratify the sheriff’s act?</p> <p>6. It is contended, that the judgment against the sheriff is conclusive of all the recitals and facts in the record, when offered as evidence in this proceeding.</p> <p>Without wishing to disclaim Baldwin’s authority, for aught the record purports to contain, as between the parties to the judgment, we say that a judgment is only admissible, as an estoppel, between parties and privies, and on the points actually decided. 1 Dev. &Bat. 486; 1 Stark. Ev. 186. That it is only evidence between parties and privies, see 3 Conn. 316, except to the fact of its own existence. So that, in any other proceeding, the authority of the attorney may be questioned, or the fact of the plaintiff on record bringing the suit may be.</p> <p>The cases show that this may be done. 6 Pick. 483; 1 Term R. 62 ; 4 Day, Conn. R. 4S0 ; 6 Johns. 318.</p> <p>7. In answer to the objection of lapse of time, we say there is no statute of limitation to motions of this sort. The judgment is in full force until satisfied, and we have a right to remove, at any time while it is in force, all impediments to enforcing it.</p> <p>The decisions of this court cited, go upon the ground, that the receiving of depreciated paper by the sheriff is void until ratified by the plaintiff. Can mere silence be a ratification, espe-daily when the return is in general terms, and gives no notice of its own falsity, and there is no proof of any other knowledge?</p> <p>But the case of Buchhanan v. Tinnin, 2 How. (U. S.) R. 259, is relied on. That case is not authority in this cause.. It differs in these important particulars. 1st. It appeared, by the officer’s return, that such paper had been taken, and the court presumed the party knew that return, as it was a public record.</p> <p>.2d. It appeared, by the language of the return, (which was to be taken as true as long as it stood,) that there had been authority to collect in that medium.</p> <p>3d. Injustice, it was thought, might be done the officer, by suffering the return, under the circumstances of that case, to be set aside.</p> <p>4th. There was no circumstance to show unwillingness to take that medium, or any caveat to the officer or party.not to take or pay in it.</p> <p>5th. It did not appear that the plaintiff did not receive the depreciated paper.</p> <p>The analogies of law are in our favor. A rule against the sheriff for false return is not limited to two years, or any period short of the general statute which limits suits against him. So also for not returning execution; and a motion against the sheriff for not paying over money, may be made after his official term expires. 1 Stew. & Port. 486.</p> <p>A motion for amendment of judgment, nunc pro tunc, may be made at any time, there being no limitation fixed by law. Graves v. Fulton, 7 How. 592 ■ Miller v. Anderson, 1 Littell's S. 0. 170.</p> <p>8. That the sheriff should have been a party to the motion, is contended for by defendants. He was out of the jurisdiction of the court. Besides, in 7 Howard, 413, the motion was sustained without his being a party, though this question was made.</p> <p>1. It is clear that the sheriff could receive nothing but money or its equivalent in satisfaction of the execution, and therefore the taking of depreciated bank notes by him was no payment or satisfaction. See 5 How. Rep. 246, 621; 7 lb. 554, 408; 3S. &M. 271.</p> <p>2. Then the payment is not a good one, and the plaintiffs are not bound by it, unless they agreed to receive it in satisfaction of the judgment. See 5 How. Rep. 624; 7 lb. 408.</p> <p>3. The plaintiffs did not only refuse to receive it, but the defendant, (Ross,) before he paid it to the sheriff, admits that he knew it would not be received by plaintiffs, for he stated he had offered the same kind of money to plaintiffs, and they refused it.</p> <p>It has been decided, that where depreciated bank notes were received in payment by a sheriff, and execution returned satisfied, defendant at the time knowing that such currency had been refused by plaintiff, that the return of the sheriff was false and fraudulent, and ought to be set aside. See 7 How. Rep. 408.</p> <p>4. But it may be contended, the rule against the sheriff, &c. amounts to a recognition of the satisfaction of the execution. The attorney who made this motion had no authority to do it. He was not the attorney of record. Even the attorney of record, like the sheriff, could receive nothing in satisfaction but legal currency. His authority is to collect the money, and if he had received the depreciated notes from the sheriff, his act would not have been binding on the plaintiffs. See 1 How. Rep. 577; 3 lb. 314; 3 Stewart, 23; 2 J. J. Mar. 71. Then if the attorney of record could not receive any thing but money, no act of his could amount to a recognition of the act of the sheriff, because if he could not receive depreciated bank notes, of course he cannot recognize their reception by the sheriff, who also had no power to receive such paper.</p> <p>5. If the lawful attorney could not recognize the act of the sheriff, a fortiori, an attorney, who is not employed by plaintiffs, could not do it.</p> <p>6. But the motion against the sheriff, even admitting the authority of the attorney to make it, does not preclude the plaintiffs’ motion to set aside the return of the sheriff. This point has been expressly decided by this court. 5 How. Rep. 624.</p> <p>1. That the sheriff’s return is conclusive, and cannot be impeached, except in a direct proceeding to which the sheriff is a party. 3 Cowen & Hill’s Notes to Phil. Ev. p. 820, n. 582; lb. p. 1087, 1088; 3 Littell, 129; 1 Peters, C. C. R. 441. The case of Anderson et al. v. Carlisle & White, 7 How. 408, does not decide that the sheriff is not a necessary party. In the case before the court, it is no excuse for not making the sheriff a party that he lives out of this state. The statutes making, in such a case, no innovation on the common law rule, he must be pursued to what is equivalent to outlawry. 1 Chitty’s Plead. 42.</p> <p>2. The payment, against the sheriff and his sureties, is a satisfaction of the judgment against the defendants. 1 Ala. Rep. 257.</p> <p>3. By proceeding against the sheriff and his securities, after notice that the payment was made in uncurrent funds, the plaintiffs have made their election of remedies, and cannot proceed against the defendants. 3 Phil. Ev. by Cowen & Hill, p. 823; 2 How. U. S. Rep. 258; 7 Johns. 500. The attorney of the plaintiffs knew, at the return term of the execution, that the payment was made in uncurrent money, and whether the plaintiffs themselves had notice or not makes no difference; it is sufficient to charge them with notice, that their attorneys had notice. Story’s Agency, 131, § 40; 1 Story’s Eq. Jur. 408; 4 Wheat. 466; 2 Kinne’s L. Comp. 192; 9 Johns. 164, and cases cited in note (v) in the margin. It is no answer to this that the plaintiffs refused to receive the money from Ross, for then the money was not paid to the sheriff; nor is it any answer that Bliss refused to ratify the payment, for he had no authority to do so.</p> <p>4. The plaintiffs cannot at law deny the authority of the attorney to take the proceedings and judgment against the sheriff and his sureties. The record is conclusive, and their remedy is against the attorney. 6 Johns. 296 ; lb. 34; 1 Tyler, 304; 7 Pick. 137; 1 Cond. Rep. of La. 700 ; 7 Harr. & Johns. 275 ; 5 lb. 478; 2 Har. & Gill, 374; 1 Binn. 224; Coxe, N. J. Rep. 214; 3 Kinne’s L. Comp. 104. I understand that this court has also decided the same at the November term, 1846, but have not been able to meet with the case. The authority of the plaintiff’s attorneys continues until the judgment is satisfied. 1 Greenl. Maine R. 257; Hill, N. Y. Rep. 552; 16 Mass. 395, 373; 7 Pick. 193.</p> <p>5. It is clear, from the evidence, that the plaintiffs knew that the payment was made in úncurrent money; and whether they are concluded or not by the judgment against the sheriff, after the lapse of five years, their acquiescence will be presumed. 2 How. U. S. Rep. 258; and also the case of Prewett v. Standifer, (8 S. & M. 493,) decided at the January term, 1847, of this court, as well as several other cases in which this court has settled the same principle.</p> <p>6. The admissions of Ross, one of the defendants, constitute all the evidence that the payment was made in uncurrent money. These admissions are no evidence against Stovall, the surety. 8 Ala. Rep. 353; 2 Wash. C. C. Rep. 473. So if the return can be set aside at all as to Ross and Davis, it cannot as to,Stovall; and if the plaintiffs cannot have execution against all, they cannot against any, as the execution must pursue the judgment. 2. J. J. Marsh. 137; 2 Har. Dig. 1121; see 5 U. S. Dig. 315.</p> <p>7. Baldwin’s evidence was inadmissible, because if he had no authority to take the judgment against the sheriff and his sureties, he is liable to the plaintiffs, and is therefore interested. 1 Greenl. Ev. 438, 439, 440, 441. Rejecting his depositions, and the objectionable part of Bliss’s deposition, and there is no evidence of a want of authority to procure the judgment against the sheriff and his sureties, and in the absence of such proof, the authority is presumed. 1 U. S. Dig. 328, sec. 68, 72.</p> <p>8. This motion is addressed to the discretion of the court, and ought not to be granted under the circumstances of this case. The attorneys of the plaintiffs knew for four years that the payment was made in uncurrent money, and took no steps to set aside the return until the sheriff had left the county, and the defendants were disabled from proceeding against him. A judgment is taken against the sheriff and his sureties, which yet stands in full force against them. Both attorneys now come forward after the lapse of five years, and say that they had no authority for so doing, whilst the plaintiffs are still employing the same attorneys, who acted without authority to their prejudice, to procure a new execution against the defendants. If the relief were granted, the consequence would be, that the plaintiffs would have a judgment in full force against the defendants, and one against the sheriff and his sureties for the same identical cause of action.</p>

<p>While it seems that a great and sudden depreciation in the value of property might so change the condition of an estate, as to excuse an administrator from liability for debts previously paid ; yet if the administrator has had the estate an unreasonable time before he declared it insolvent, after having paid debts in full, or if the insolvency is the fault of the administrator, it seems the depreciation in the value of the property will not protect him ; if he returns an estate insolvent after paying debts, he must have a clear and undoubted excuse.</p> <p>Therefore, where to an action on an administrator’s bond, the breach assigned was maladminstration in paying debts of the intestate in full, leaving a judgment against the intestate, held by plaintiffs, wholly unpaid, and the defendants plead acknowledging the payments, but averring that they were made after the lapse of nine months from the grant of administration, in good faith, under the belief that the estate was solvent, but that it had since become insolvent by a depreciation in the value of the property ; it was held, the reply to the breach was insufficient; it might be true, and yet there have been the grossest maladministration.</p> <p>To a breach assigned in an action on an administrator’s bond, that the defendants had maladministered, in selling real estate to the amount of fifty thousand dollars for the payment of debts, which they had failed to pay out in the course of administration, the defendants replied, that before the money was received, the estate was reported insolvent; held, the reply was insufficient ; if true, it was no excuse for not paying those entitled when they received the money.</p> <p>Toa breach in alike action, that the defendants had paid out twenty-four thousand dollars towards debts wrongfully contracted by them after their testator’s death, when the estate was insolvent, and not in the due course of administration, and left unpaid plaintiff’s judgment, the defendants answered, that they paid the money out on contracts rightfully made by them, in pursuance of the.will of their testator; held, the reply was insufficient; the creditors of an insolvent estate have equal claims, though there be a will; and if that authorized the defendants to make contracts, the facts should have been pleaded for the court to determine whether they were rightfully or wrongfully made.</p> <p>In an action on an administrator’s bond, the plaintiff offered in evidence, the record of a judgment against the three administrators, cum testamento annexo, in a suit commenced against their testator in his lifetime, and revived by scire facias against them ; two of the administrators were rightfully served with the scire facias, but the record did not show a legal service on the other ; the judgment was rendered in the year 1838, against all three, and they took no steps to reverse it ; it was held, that the record was properly admissible, as evidence of an indebtedness of the estate to the plaintiffs ; that even if the service on two of three administrators was not sufficient as against the third, (and the court intimate that it was,) yet the judgment as to them was only erroneous, not void, and by lapse of time had become incapable of being reversed, and was evidence of a debt against the estate.</p> <p>It seems, that where an action is brought on an administrator’s bond, and the defendants in the pleadings are styled administrators, &c., with the will annexed, and a judgment is offered in evidence rendered against them, generally as administrators, the variance, if any, will be immaterial.</p>

<p>In error from the circuit court of Jasper county; Hon. Armis-tead B. Dawson, judge.</p> <p>William Jones was indicted for an assault with intent to kill, in the following words, viz.: “ That William Jones, late, &c., on the first day of May, in the year of our Lord eighteen hundred and forty-five, in the county aforesaid, with force and arms, &c., with a certain gun, then and there loaded with powder and divers leaden shot, which he, the said William Jones, in both his hands, then and there had and held, at and against one Cornelius L. Mixon, then and there being, feloni-ously, wilfully, maliciously, and unlawfully, did shoot with intent then and there, and thereby feloniously, wilfully, maliciously, and unlawfully, and of his malice aforethought, to kill and murder, contrary, &c.” The 'prisoner pleaded not guilty; was tried, and found guilty. He moved in arrest of judgment; and on the motion being overruled, prosecuted this writ of error.</p> <p>There were two substantial errors in the indictment. 1. It does not show with any degree of legal certainty, that defendant below intended killing Cornelius L. Mixon, the prosecutor. On this point they cited Gould’s PI. 87, § 62, and authorities cited. 2. It does not appear by any averment therein, that the gun mentioned, was so loaded as to be capable of doing the averred mischief., The very gist of the supposed offence is, that defendant shot the gun with the intent to kill and murder Cornelius L. Mixon. This is the very essence of the crime, and without which none was committed, and it must therefore be alleged with the highest degree of legal certainty. It does not appear, by any allegation therein, that Mixon was stricken, much less wounded by the shot, and, therefore, that defendant below had any such intention, cannot be inferred from any such averment. It appears that he shot at Mixon with intent to kill and murder, but it does not appear with any certainty that he shot at Mixon with intent to kill and murder Mixon. Vaughan v. The State, 3 S. & M. 653; 3 Chit. Crim. Law, 791, n. a; Russ. & Ry. C. C. 377.</p> <p>The indictment charges, that the defendant shot at the said Cornelius L. Mixon, with intent to kill and murder, and hence it is clear that Cornelius L. Mixon was the person whom he intended to kill and murder. The words omitted are formal and not substantial, and if inserted, would add nothing to the certainty of the charge.</p>

In error from the circuit court of Holmes county; Hon. Morgan L. Fitch, judge.

<p>It is well settled, that any acts done by one partner, in regard to the property or contracts of the partnership beyond the scope and objects of the partnership, do not bind the firm without some special authority for the purpose. Therefore, where one partner pays his individual debt with the partnership money or property, the act is an illegal conversion of the fund, and the separate creditor can have no better title to the fund, than the individual partner himself had.</p> <p>So also, where the debtor of a partnership, who at the same time was a creditor of one of the partners, procured a receipt for his partnership indebtedness from the partner who was indebted to him, by allowing a credit to an equal amount upon that partner’s individual debt to him, the receipt so obtained will not be obligatory upon the other partner ; and the partnership may maintain an action against their debtor, and recover the debt, notwithstanding such receipt.</p> <p>It seems, that in an action upon an open account by a firm, for the use of a third party, a bill of discovery by one member of the firm against the defendant, will not be demurrable, merely because it is filed by one of the nominal plaintiffs.</p>

In error from the circuit court of Leake county; Hon. Morgan L. Fitch, judge. John Doe, on the demise of Robert Huntington, brought his action of ejectment, to recover the south half of lot number two, in square number eleven, in the town of Carthage in said county. James S. Pritchard was made defendant.

In error from the circuit court of Madison county; lion. Robert C. Perry, judge. On the loth day of May, 1838, Maxfield Chambers recovered, in the said circuit court, a judgment against John D. King, for $ 103-10. Execution issued on this judgment, which was bonded, with Milton King and James Flowers, sureties, and the bond forfeited on the 29th day of June, 1842.

<p>Where a commission of insolvency was duly closed, and the commissioner discharged at the November term, 1845, of the probate court; and at the March term, 1845, a petition was filed by one alleging himself to be a creditor, and praying that the commission might be re-opened, to let in his claim for the reason, that in July, 1845, he had laid before one of the commissioners his account duly certified, and in their report to the probate court, they had returned no claims against the estate; it was held, that the petition showed no available grounds for re-opening the commission; the objection to the report, if any, should have been taken by way of exception to the report at the term to which it was reported.</p> <p>Where commissioners of insolvency reported, that no claims had been presented against the estate; it was held to be no objection to the report, that it was not accompanied, as the statute requires, with “ the list of claims presented, &c.”</p> <p>Nor is it any objection to the report of commissioners of insolvency, that the probate court, upon allowing the report, omitted to make the order of distribution ; the omission could, at any time afterwards, be supplied ; and was a matter which alone concerned creditors who had presented their claims, and distributees.</p>

<p>Under the statute of this state, (How. & Hutch. 557,) if the answer of a garnishee of a judgment debtor, admits an indebtedness, a judgment may be rendered therein against such garnishee; but if the answer denies an indebtedness, and there be no adverse finding of a jury, no judgment can be rendered against the garnishee.</p> <p>E., being summoned by H. as the garnishee of K., a judgment debtor to H., answered, that he bought of K. a lot of ground in Texas, and executed his note to K. for a part of the price; but that there was some doubt about the title of the lot; and that the note might have been assigned, though he had received no notice of it; H. did not contest the truth of this answer, but insisted upon a judgment thereon against E. for the amount of his judgment, which was less than the note; the court below discharged E. from the garnishment; held, that the judgment discharging the garnishee was correct; the contract between E. and K. was to be governed by the laws of Texas; and before H. could obtain a judgment upon the answer of the garnishee, it was his duty to show, that, by the laws of Texas, E. was liable to K. on the note, in question; which would not be the case, if the mercantile law prevailed in Texas, and the note had been assigned ; nor if partial failure of consideration was there admissible as a defence to the note.</p> <p>Unless the plaintiff in a judgment at law, who has summmoned a garnishee of his judgment debtor, shows himself to be entitled to the judgment by law, no judgment can be rendered for him on an answer of the garnishee, which does not admit an indebtedness.</p>

In error from the circuit court of Kemper county; Hon. Hend]y S. Bennett, judge. Albert G. Brown, Governor of the state of Mississippi, [to whom all sheriffs’ bonds in this state are made payable,] for the use of Powhattan B. Thurmond, sued Elisha Mosely, John V. Welch, Ezekiel S. Gully, James Campbell, John H. Mosely and -Augustin H. Harris, upon the official bond of Wiley Mosely, deceased, as sheriff of Kemper county.

<p>No appeal lies to this court from the circuit court in criminal cases, and a recognizance taken from the defendants in an indictment, after a verdict of guilty and the allowance of an appeal to this court, that the defendants will appear at the next term of the circuit court, &c., to abide the decision of the high court of errors and appeals, and not depart, &c., is a nullity.</p> <p>Nor will a writ of error lie from the verdict of a jury in a criminal cape, of guilty, when the circuit court has not rendered judgment thereon ; and if one be sued out to this court, the case will be remanded, that the circuit court may enter a judgment according to the verdict.</p> <p>Nor is a writ of error grantable, as matter of right, by the circuit clerk in criminal cases ; it must be upon the fiat of a competent officer'. (How. & Hutch. 358, sec. 40.) ' '</p>

<p>In an action of trespass, guare clausum fregit, the defendant plead, puis darrein continuance, a plea of accord and a tender of the amount of the accord, together with the costs accrued up to the period at which the accord was to take effect; held, on demurrer to the plea, that it was a good har to the action ; the accord was good, being such an agreement as would support an action for its non-performance, and the plea was properly plead puis darrein continuance.</p> <p>Such a plea is not filed under the statute (How. & Hutch. 572, sec. 205), which permits a defendant to disclaim any claim or title to the land, the subject of the trespass, and tender amends for the trespass before action instituted.</p>

Henry Dickinson, vice-chancellor. Edwin Famed filed his bill against John 0. Harris and Nehemiah Harris, alleging, that at the March term, 1842, of the circuit court of the county of Lawrence, and state of Alabama, the complainant recovered a judgment in the name of Skinner, Mullins & Co., for his use, against Nehemiah Harris, James M. Harris, and'Robert L. Harris, for the sum of $1710-18; that the amount of this judgment, with interest, is still due.

In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge. Edward K. Chaplain, administrator of William R. T. Chaplain, sued Parmenas Briscoe upon two notes, dated February 8, 1832, and payable to John B. Conger on the 1st of January, 1838 ; one made by Thomas Briscoe and Parmenas Briscoe for $366-66, and the other made by Parmenas Briscoe and Thomas Briscoe for $609. A trial was had, and a verdict rendered for the defendant.

In error from the circuit court of Adams county; Hon. C. C. Cage, judge. The Commercial Bank of Natchez, on the 11th of December, 1843, sued John Routh and Elias Ogden, administrators, and Mary M. Ellis, administratrix of Thomas G. Ellis, deceased, upon their intestate’s indorsement upon a bill of exchange drawn by Francis Routh on W. W. Swain & Co. for five thousand dollars, dated November 26, 1836, and due four months after date, on the 29th day of March, 1837.

In error from the circuit court of De Soto comity; Hon. Hugh R. Miller, judge. Andrew J. Williams sued Thomas Williams, and filed against him a declaration in debt, containing three counts; the first on the following award, viz : “ Oct. 10, 1843.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. In October, 1840, Harrison Devinal sued James Payne upon two notes for $1250 each; dated July 15, 1839, one due nine, and the other twelve months after date, executed jointly by Thornton Alexander as principal, and Payne as surety, payable to Orland Lane, and by him indorsed to Devinal. The defendant plead non-assumpsit and payment. Three verdicts below were rendered.

<p>While, as between individuals, where a note is payable in the issues of a bank, the value of the notes of the bank, at the time the debt becomes due, is the measure of recovery, yet a different rule prevails where a bank is suing upon a note payable in its own issues ; in such case the bank will be entitled to recover the full amonnt of the note and interest, because the defendant can if he choose, even after judgment, discharge the debt with the issues of the bank.</p>

Lv error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.

<p>Where a plea is filed at a term of the court subsequent to that at which the process is returned served on the defendants, and the record does not show that this plea is filed by leave of the court, the plea will be so radically defective that it may be disregarded by the plaintiff; nor will it make any difference if the plea recite, in the body of it, that it was filed “ by leave of the court; ” the record must show the permission affirmatively; if therefore a verdict be rendered, and such a plea be undisposed of in the record, and it does not appear by the record that it was filed by leave,, it will not be error.</p> <p>It will not he good ground for a new trial on account of newly discovered evidence, that the defendant has discovered, since the trial, that he can prove, by a witness examined on the trial, the payment of the note sued on ; by due diligence the defendant could have obtained the knowledge before the trial, or by proper interrogation have established the fact at the trial.</p>

In error from the circuit court of Oktibbeha county; Hon. Francis M. Rogers, judge. Lawrence Beverly and Casey A. Outlaw, on the 22d of March, 1847, sued Elias Westbrook upon an open account for sixty-three dollars and sixty-three cents, due in the year 1841. The defendant plead as follows: “ Defendant pleads non-assumpsit and the statute of limitations in short, by consent.

In error from the circuit court of Lawrence county; Hon. Thomas A. Willis, judge. John Doe, on the demise of James M. Turner, brought his action of ejectment in March, 1846, for a lot in the town of Monticello, to which James M. Ellis was duly made defendant. On the trial, the plaintiff read a deed for the premises in controversy, from Pleasant Harris to Jeptha S. Collins, dated 4th September, 1836. It was read from the record book of the Probate Court.

In error from the circuit court of Attala county; Hon. Morgan L. Fitch, judge. On the 23d of April, 1844, Peter Fisher, administrator of George Fisher, deceased, sued James Newell upon the latter’s note for $1002-13, dated January 14th, 1843, and due one day after date, to the order of George Fisher.

John Walker, judge. A petition was filed by Elkanah L. Bramblet, administrator of James M. Norwood, in the probate court, to have the estate of Norwood declared insolvent. He represented that he had sold all the real and personal estate, and the amount of good assets received or to be received, as $4090-38, and the debts unpaid, $4493-92; the debts paid, $5213-53; showing a deficit of $5617-07, besides fees, &c. This petition was filed at the August term, 1847.

In error from the circuit court of Yazoo county; Hon. Morgan L. Fitch, judge. Held: that a creditor, under the statute, is affected by actual notice of the unrecorded deed, equally with a purchaser. 1 S. & M. R. 70. 4. It is immaterial, whether the notice was received before or after the credit was given. 6 Rand. R. 618 ; 4 Dana, R. 258; 1 Freem. Ch. R. 85, 98; 1 Pick. R. 164. 5.

In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge. John Thomason, on the 4th of March, 1846, filed in the circuit clerk’s office a promissory note for the sum of $400, executed by R. Wiggle and A. Elkin, on the 19th of August, 1845, and payable to the said John Thomason, or bearer, on or before the 1st day of March, 1846.

Henry Dickinson, vice-chancellor. Merritt Dillard, and Elizabeth his wife, filed their bill March, 1844, stating that a negro boy, John, in May, 1839, had been sold under executions, as the property of Merritt; that the children and other relations of complainants had furnished money to one J. S.. Curtis, to buy said boy and convey him to complainant, Elizabeth, which was done; and that the bill of sale from Curtis was recorded.

In error from the circuit court of Rankin county; Hon. John H. Rollins, judge. The Planters’ bank, for the use of Anthony V. Winans, sued Gilbert'Coates, John E. Richardson, John S. Gooch, James R. Harris, and Thomas J. Coifee, to October term, 1838, upon their joint promissory note for $2000. At the October term, 1838, a judgment for plaintiff for $2026-26 and costs was entered, and by consent of parties execution was stayed six months.

In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge. [Judge Rogers being interested as counsel for defendant, John A. Wilcox, Esq., by consent, presided at the trial.] On the 13th of October, 1845, John W. Fuqua and Benjamin 0. Adams, late partners under the firm of Fuqua & Adams, sued John L. Tindall, Jr., upon a note for $138-75. The defendant plead non-assumpsit, and payment, in short, by consent.

Robert H. Buckner, chancellor. George L. Douglass filed his bill, in which he states, that on the 6th of March, 1838, the defendant, Thomas Hudnall, being indebted to the firm of N. & J. Dick That on the 6th March, 1838, Hudnall gave to N. & J. Dick & Co. a mortgage to secure said notes, on the land and negroes mentioned in the mortgage, and which is exhibited and marked A. That afterwards Hudnall, in discharge of two of said notes, and further to secure and protect the said…

<p>The act of 1840, prohibiting assignments of their choses in action, and evidences of debt, by a bank, having been declared unconstitutional by the Supreme Court of the United States, will, in obedience to that decision, be so held by the high court of errors and appeals of this state.</p> <p>Therefore, where, on the 25th of June, in the year 1843, the Planters’ Bank of the State of Mississippi made an assignment of all its effects to trustees, for the benefit of creditors, and subsequently, in the year 1843, proceedings were commenced against it, in the nature of a quo warranto, under the act of 1843, which progressed to a judgment in the year 1845, and trustees were duly appointed under the act of 1843, who sued the former trustees for the property of the bank in their possession ; it was held, that the deed of assignment being valid, the trustees appointed under it would hold the property conveyed to them, in preference to the trustees appointed by the court under the act of the legislature.</p> <p>A clause, in a deed of assignment by a bank, for the benefit of its creditors, which permitted the trustees “ to sell or pledge, any of the property or effects conveyed, including the notes of the bank, (its circulation,) in case any pressing emergency, not otherwise to be provided for, should render it necessary so to employ said bank notes,” does not (even if the bank or any of its debtors, or the trustees appointed by the court, under the law, to take charge of its assets, could call in question the validity of the assignment, on the ground of fraud, which is doubtful,) of itself vitiate the assignment, or render it fraudulent in law.</p> <p>Such a provision is not, in itself, an improper appropriation of the assets, although it may lead to such a result; if the power be improperly exercised, so as to amount to a fraud in fact, a court of chancery may check and control the abuse, upon the application of the creditors or of the stockholders.</p>

Robert H. Buckner, chancellor. Edward Boisgerard and John Delafield, on the 5th of October, 1842, filed their bill, in which they state that Michael Wall and more than a hundred other persons, entered into articles of partnership in April, 1838, for the purpose of banking, under the style of the Real Estate Banking Company of Hinds County. The names of the partners are given, and the terms of the partnership.

In error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge.

Henry Dickinson, vice-chancellor, presiding. On the 23d of April, A. D. 1845, Letitia Dickson filed her bill against Joseph W. Miller and Martha, his wife, stating that about the 1st November, 1835, Martha, who was then single, a minor and an orphan, went to live and reside with complainant, and so lived with her for three years; during which time she was boarded, clothed, maintained and educated by the complainant ; and for which complainant is entitled to a reasonable sum,…

In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge. Foster H. Thompson sued Marcus D. Means in an actiou of debt upon the following instrument. “ The state of Mississippi, Yalabusha county, Feb. 27, 1844. Foster H. Thompson has this day purchased of me my house and lot in the town of Preston, and also one half of my medical jars and bottles, for which he has obligated himself to pay to me the sum of seven hundred dollars.

In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge. Held: that a declaration was defective, which did not show against whom the writ was issued. 16 Eng. Com. Law Rep. 56. The bond sued on is clearly a bond of indemnity. It was intended to secure the obligor from loss or damage on account of the interposition of a writ of supersedeas to restrain him from enforcing a judgment.

Hugh R. Miller, judge. On the 29th of January, 1845, John C. Hill made affidavit, that Thomas B. Hill was indebted to him in the sum of $542, and was about to remove his effects, so that the claim would be lost. Bond was given, and an attachment issued, which was levied on a tract of land.